State ex rel. Frost v. Creusbauer , 68 Mo. 254 ( 1878 )

Sherwood, C. J. —

Deegan and Creusbauer were partners ; Deegan died, and Creusbauer administered on the partnership estate, being appointed for that purpose September 23rd, 1872. This suit is brought on the relation and to the use of Frost, administrator of the estate of Deegan, on a bond executed by Creusbauer and the other defendants on the 2nd day of January, 1873.

I. It is claimed that the petition was insufficient, but we think it otherwise; the alleged breach of the bond consisted in the failure of Creusbauer to pay over to Frost, the administrator of Deegan, the amount, $2,380.44, ascertained by the probate court, on final settlement with Creusbauer, to be due the estate of Deegan, and ordered to be paid. And this was a sufficient assignment of a breach of the conditions of the bond. Those who were sureties on the bond at the time the alleged breach thereof occurred, were, together with their principal, liable for such default, no matter when those sureties executed the bond, the ground of recovery being the failure to pay the money adjudged on final settlement to be due. The demurrer was, therefore, properly overruled.

2.-:---; evidence: voluntarybond.

II. The sole issue raised by the answer of the sureties, for Creusbauer stood on his demurrer, was whether they executed the bond in suit, and on this point the . *■ evidence was amply sufficient. As this was

the only issue made by the pleadings, any evidence as to a prior bond was wholly foreign to the case and improperly admitted. Capital Bank v. Armstrong, 62 Mo. 59; Chapman v. Callahan, 66 Mo. 299. But even had the answer alleged that a priorbond had been given, the fact that this was done, would not invalidate or render void the subsequently executed bond, though no order of the probate court required its execution. This was so ruled in Wood v. Williams, 61 Mo. 63. Because a bond is a voluntary one, its binding and obligatory force is by no means lessened. Henoch v. Chaney, 61 Mo. 129, and cases cited. And it was optional with the administrator of Deegan’s estate whether he should resort to the prior or to the subsequent bond. Wood v. Williams, supra. And there was no necessity that the latter bond, in order to its validity, should have been approved by the probate court.

III. It is well settled in this State that a suit on the administration bond can be maintained against the sureties of the administrator, who has been ordered to pay over money by the probate court, and that the judgment of that court against the administrator is conclusive against his sureties. State v. Holt, 27 Mo. 340; State v. Rucker, 59 Mo. 17; Dix v. Morris 66 Mo. 514. This disposes of the objection that the circuit court had no jurisdiction over the subject matter of the action. The fact that resort might have been had to the remedy of issuing execution against the administrator, and if this proved barren of results, that sci. fa. might have been issued against the sureties under the provisions of Wag. Stat., secs. 13, 14, p. 109, does not deprive the circuit court of its ordinary jurisdiction in this regard.

IY. There is but one point remaining for discussion, and that is in relation to the action of the trial court in permitting plaintiff, after the cause was closed, to introduce further testimony, testimony showing the settlement made in the probate court. We discover no error in this, as it was a matter in the discretion of the trial court. Judgment affirmed.

All concur.

Affirmed.